Bradley v. Vox Media, Inc.

320 F.Supp.3d 178

Cheryl C. BRADLEY, et al., Plaintiffs,

v.VOX MEDIA, INC. d/b/a Sb Nation, Defendant.

Civil Action No. 17-1791 (RMC)

United States District Court, District of Columbia.

Signed September 4, 2018

James E. Goodley, Jennings Sigmond, P.C., Philadelphia, PA, Judith A. Sznyter, Jennings Sigmond, P.C, Philadelphia, PA, Marc L. Gelman, Jennings Sigmond, P.C., Philadelphia, PA, Stephen J. Holroyd, Pro Hac Vice; Attorney to be noticed, Jennings Sigmond, P.C., Philadelphia, PA, for Plaintiffs.

Theodore J. Boutrous, Jr., Jason Craig Schwartz, Gibson, Dunn & Crutcher LLP, Los Angeles, CA, for Defendant.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, United States District Judge

How much employer control is required for an independent contractor to be considered an employee under the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201 et seq. ? That is the question raised by a purported class of employees who provide blogging and supervision services to Vox Media, Inc. (Vox) on its various sports blogs. Before the Court may address that question, Vox moves for partial dismissal to limit Plaintiffs' claims to the two-year, rather than three-year, statute of limitations provided by the FLSA. Vox argues that Plaintiffs have failed to allege adequately its violation was willful, as required to fall under the three-year statute of limitations. The Court finds Plaintiffs' allegations sufficient to allege a plausible claim for relief and will deny the motion.

I. BACKGROUND

Vox is a media corporation that maintains and operates approximately 319 sports websites through its business division, SB Nation. First Amended Collective Action Complaint (Am. Compl.) [Dkt. 16] ¶ 11. Each website is maintained by a Site Manager, who is in turn supervised by a League Manager. Id. ¶ 17. Vox manages its Site Managers through Blogger Agreements and direct supervision by League Managers. Id. ¶¶ 13, 70-73. Each Blogger Agreement outlines when and how often Site Managers must create new content, specifies that Vox maintains the authority to edit or remove such content, and includes a non-compete clause. Id. ¶¶ 53-59. When a position becomes available, Vox posts a short description to its website that includes a list of requirements and responsibilities, as well as details on how to apply. Id. ¶ 50. It advertises for all its paid positions in the same manner. Id.

Plaintiff Cheryl Bradley was a Site Manager for Vox's website, Mile High Hockey , from June 2013 until February 2015. Id. ¶ 14. Her relationship with Vox was governed by a Blogger Agreement that she signed on June 1, 2013. Id. ¶ 13; see also Ex. 1, Am. Compl., Bradley Blogger Agreement [Dkt. 16-2]. Ms. Bradley was interviewed, and later managed, by League Manager Travis Hughes. Am. Compl. ¶ 44. She was required to watch games featuring the Colorado Avalanche, a professional ice hockey team, and then to publish five to six articles per week, manage other writers, edit and approve articles by those writers, monitor search engine optimization, manage Mile High Hockey 's comments section and social media accounts, and live-Tweet games and practices. Id. ¶¶ 16, 18-19. Ms. Bradley was paid $125 per month. Id. ¶ 20. She regularly worked 30-40 hours per week, and up to 50 hours per week during peak times or when she was understaffed. Id. ¶¶ 20-21. In late 2013, Ms. Bradley complained to her League Manager that her wages were inadequate and was told that wages were dependent on team site traffic. Id. ¶ 106. Even though she increased Mile High Hockey 's site traffic, her pay never increased. Id. Ms. Bradley was fired in February 2015. Id. ¶¶ 45-46.

Plaintiff John Wakefield was a Site Manager for Vox's website, Through it All Together , from December 2015 until May 2017. Id. ¶ 23. Mr. Wakefield applied for the position on December 10, 2015 and was hired by Soccer League Manager Jeremiah Oshan. Id. ¶ 47. His relationship with Vox was governed by a Blogger Agreement that he signed on January 1, 2016. Id. ¶ 22; see also Ex. 2, Am. Compl., Wakefield Blogger Agreement [Dkt. 16-3]. He was required to watch or listen to games featuring the Leeds United Football Club, an English professional soccer team, and publish one to three articles per week, manage other writers, edit and approve articles, monitor search engine optimization, and manage Through It All Together 's comments section and Twitter account. Am. Compl. ¶¶ 27-29. Mr. Wakefield was initially paid $50 per month; his pay was later increased to $75 per month. Id. ¶ 30. He regularly worked 30-40 hours per week, and up to 60 hours per week during peak times. Id. ¶¶ 30-31.

Plaintiff Maija Varda is currently the Site Manager for Vox's website, Twinkie Town. Id. ¶ 33. Ms. Varda applied for the position of Site Manager in April 2016 after seeing a job posting and was interviewed and hired by Major League Baseball League Manager Justin Bopp. Id. ¶ 49. Her relationship with Vox is governed by a Blogger agreement that she signed on May 1, 2016. Id. ¶ 32; see also Ex. 3, Am. Compl., Varda Blogger Agreement [Dkt. 16-4]. She is required to write daily interest articles about the Minnesota Twins, a professional baseball team, report breaking news, recruit and manage staff writers, and manage Twinkie Town 's social media accounts. Am. Compl. ¶¶ 35-38. She is paid $400 per month. Id. ¶ 40. She regularly works 30 to 40 hours per week, and up to 50 hours per week during peak times or when she is understaffed. Id. ¶¶ 40-41.

On September 1, 2017, Ms. Bradley filed a Collective Action Complaint against Vox, alleging a violation of the minimum wage and overtime requirements of the FLSA. Collective Action Compl. [Dkt. 1]. An Amended Complaint adding Mr. Wakefield and Ms. Varda as named plaintiffs was filed October 23, 2017. See Am. Compl. Vox moved for partial dismissal of any claims outside the standard two-year statute of limitations on November 6, 2017 and at the same time moved for the Court to take judicial notice of four exhibits attached to the partial motion to dismiss. Plaintiffs opposed and Vox replied. Both motions are ripe for review.¹

The Court has jurisdiction under 29 U.S.C. § 216(b) of the FLSA and 28 U.S.C. § 1331. See 29 U.S.C. § 216(b) ("An action to recover the liability prescribed in the preceding sentences may be maintained against any employer (including a public agency) in any Federal or State court of competent jurisdiction by any one or more employees for and in behalf of himself or themselves and other employees similarly situated."); 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). Venue is proper in the United States District Court for the District of Columbia because Defendant Vox Media, Inc. is headquartered in the District and the events giving rise to Plaintiffs' claims also occurred in the District. See 28 U.S.C. § 1391(b)(1), (2).

II. LEGAL STANDARD

A. Judicial Notice

In ruling on a 12(b)(6) motion to dismiss, a court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits or incorporated by reference, and matters about which the court may take judicial notice. See Abhe & Svoboda, Inc. v. Chao , 508 F.3d 1052, 1059 (D.C. Cir. 2007). The court has the discretion to take judicial notice of "historical, political, or statistical facts, or any other facts that are verifiable with certainty." Mintz v. FDIC , 729 F.Supp.2d 276, 278 n.2 (D.D.C. 2010). The Federal Rules of Evidence require that the court only judicially notice a fact when it is "not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed. R. Evid. 201(c)(2). The facts to be noticed must also be relevant. Whiting v. AARP , 637 F.3d 355, 430 (D.C. Cir. 2011) (declining to take judicial notice of facts that are "irrelevant to disposition of the motion to dismiss, which turns on the adequacy of the well-pleaded factual allegations in the complaint").

B. Motion to Dismiss for Failure to State a Claim

A motion to dismiss for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) challenges the adequacy of a complaint on its face. Fed. R. Civ. P. 12(b)(6). A complaint must be sufficient "to give a defendant fair notice of what the ... claim is and the grounds upon which it rests." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). Although a complaint does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is "plausible on its face." Id. at 570, 127 S.Ct. 1955. A court must treat the complaint's factual allegations as true, "even if doubtful in fact." Id. at 555, 127 S.Ct. 1955. But a court need not accept as true legal conclusions set forth in a complaint. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

III. ANALYSIS

A. Judicial Notice

Vox asks the Court to take judicial notice of Exhibits 2-5 to their Motion to Dismiss. Exhibits 2-4 are screenshots from Mses. Bradley and Varda's and opt-in Plaintiff Jacob Pavorsky's LinkedIn profiles, respectively. See Exs. 2-4, Mot. to Dismiss [Dkts. 21-3, 21-4, 21-5]. Exhibit 5 is a screenshot of Ms. Bradley's comments on the Mile High Hockey website. See Ex. 5, Mot. to Dismiss [Dkt. 21-6].

Vox argues that these exhibits are relevant to its defense that Vox did not willfully violate the FLSA because the exhibits show that Plaintiffs did not consider themselves to be employees. Vox adds...